JULY 4, 2016 VOLUME 23 NUMBER 25
Just two weeks ago we told you about an Ohio appellate decision dealing with the authority of a close family member (in that case a sister) to participate in, and appeal from, a guardianship hearing. At about the same time another Ohio appellate court was dealing with a related question for guardianship proceedings: does the subject of a guardianship have the right to hire his or her own attorney? Spoiler alert: yes.

Janna Christensen (not her real name) was the subject of a guardianship proceeding in Marion County, Ohio. Her daughter Maria was appointed as her guardian in January of 2013.

By mid-2015, Janna wanted to terminate or modify her guardianship. Another daughter of Janna, and Janna’s brother, helped her get in touch with attorney Brian Cook, who agreed to represent her. Because his new client had a guardian appointed, Mr. Cook asked for court approval for her signature on a retainer agreement or, in the alternative, an instruction that Maria should sign on her mother’s behalf.

At a hearing a week later, however, the probate judge was skeptical about Mr. Cook’s involvement. The judge criticized Mr. Cook, saying: “I don’t disagree that [Janna] has the right to independent counsel,” but “you have also usurped the authority of the guardian and the Court who’s the superior guardian” for Janna. In other words, the Judge felt that the decision about hiring an attorney was one for Maria or the judge, not for Janna herself.

At that same hearing, with Janna not present (and without allowing Mr. Cook to speak on her behalf), the probate judge went on to deny Janna’s request for a review. At a later hearing, again without Janna present and without allowing Mr. Cook to represent her, the probate judge went further and agreed with Maria that visitation by other family members should be limited.

Mr. Cook nonetheless filed an appeal on behalf of Janna. The Ohio Court of Appeals agreed with his analysis, and reversed the local probate judge. There were at least three problems with the probate court order, according to the appellate court:

The ward in a guardianship proceeding is entitled to be present at hearings. When Janna specifically asked to be present, to be heard, and to have a specific attorney represent her, the probate judge was wrong to make a decision about her attorney without granting her request to participate.

Janna had a right to choose her own attorney, and her choice should not have been subjected to her daughter’s oversight.

Maria’s request to restrict her visitors should not have been considered without Janna’s presence, especially since she had specifically asked to be there, to address the court, and to have her attorney represent her.

Generally speaking, the subject of a guardianship proceeding should be given the right to select their own attorney. The probate court’s decision in Janna’s case to gloss over that right was cause for reversal of its orders, and the entire proceeding was remanded for further proceedings — with Janna’s attorney in place. Guardianship of Carpenter, June 13, 2016.

Unmentioned in the Court of Appeals proceeding, but of great concern in some of the pleadings filed in the case, is that Maria, the daughter appointed as guardian, has already charged over $90,000 in fees in her administration of her mother’s estate. Maria is an attorney in Marion, Ohio, and she apparently charged her regular attorney’s rate of between $175 and $200 per hour for the work she did in managing her mother’s affairs, her finances — and her visitors.

Would a similar result occur in Arizona? Yes, almost certainly. Though there is no clear statutory provision authorizing the subject of a guardianship or conservatorship to hire his or her own attorney, the implication in the statutes — and the universal practice — would permit such a decision. It may not be hard to imagine circumstances in which the probate court might question whether the legal representation was actually initiated by the client, or for the purposes of advancing the client’s wishes, but that would be the rare circumstance. In general, even a person who has been found to be incapacitated will — and should — be permitted to select their own attorney.

Would the same outcome be anticipated in every state? Perhaps not. Some states might take the position (either by law or by practice) that the determination that a person lacked capacity precluded them from hiring an attorney. That position would, however, be wrongheaded, misguided, and antediluvian. Not that we feel strongly about it or anything.